Full Judgment Text
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PETITIONER:
PREM RAJ AND ANR.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 07/05/1996
BENCH:
MUKHERJEE M.K. (J)
BENCH:
MUKHERJEE M.K. (J)
KURDUKAR S.P. (J)
CITATION:
JT 1996 (6) 117 1996 SCALE (4)252
ACT:
HEADNOTE:
JUDGMENT:
And
CRIMINAL APPEAL NO. 617/1996
In
(Special Leave Petition(Crl.) No. 659 of 1996)
Munna @ Narendra
V.
State of Maharashtra
O R D E R
Special leave in both the petitions granted.
2. These two criminal appeals are filed by accused Nos. 1,
4 and 7 (appellants) challenging the legality and
correctness of the impugned judgment and order dated
15-2-1995 passed by the High Court of Judicature at Bombay,
Nagpur Bench, affirming conviction and sentence under
sections 147, 148, 302 read with 149 IPC. Both these appeals
arise out of a common impugned judgment and, therefore, they
are being disposed of by this judgment.
3. The complainant Raja Ram Kolhe is the resident of
village Mohgaon Bhadade. Chhatrasal (since deceased) was one
of the sons of said Raja Ram. The incident in question took
place on 21-9-1991 at about 3.00 p.m. Fifteen days prior to
the said incident, a quarrel took place between Chhatrasal
and Vasanta (A-2) over liquor. On 21-9-1991 at about 3.00
p.m. Chhatrasal had gone to the shop of Chindu (PW 5) for
shaving. At that time, all the seven accused who were armed
with deadly weapons like spear and bamboo sticks formed an
unlawful assembly and assaulted Chhatrasal and dragged him
on the road. They continued assaulting Chhatrasal even on
the road. Chhatrasal sustained bleeding injuries and
collapsed on the ground and ultimately succumbed to the
injuries. The complaint about the incident was lodged at
about 2.00 a.m. on 22-9-1991. The investigating officer
carried out the necessary investigation and arrested the
accused. After completing the investigation, seven accused
were put up for trial for the offences punishable under
sections 147, 148, 302 read with section 149 of the Indian
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Penal Code.
The defence of the accused was that of total denial.
The defence, however, examined Madhaorao Umathe (DW 1) and
Pandurang Gathe (DW 2) as their defence witnesses.
The VIIth Addl. Sessions Judges Nagpur on appraisal of
oral and documentary evidence on record by his judgment and
order dated 19-6-1993 found the appellants and other four
accused guilty of offences for which they were tried. The
learned trial Judge accordingly sentenced all the accused
for various terms of rigorous imprisonment including life
imprisonment. Aggrieved by this judgment and order of
convictions all the seven accused preferred one criminal
appeal before the High Court of judicature at Bombay, Nagpur
Bench. The High Court on re-appraisal of the evidence on
record concurred with the findings of guilt recorded by the
learned Trial Judge and accordingly by its judgment and
order dated 15-2-1995 dismissed the appeal.
4. The appellants aggrieved by the aforesaid order of
conviction and sentence preferred these two appeals.
5. Mr. Daga, learned Advocate appearing in support of both
these appeals urged that the impugned order of conviction
and sentence is unsustainable. He submitted that the
evidence on record does not refer to any overt-act on the
part of the appellants. The appellants were found guilty
with the aid of section 149 IPC, ignoring the fact that they
had not participated in the said assault on Chhatrasal. The
learned Advocate further urged that evidence on record does
not prove beyond reasonable doubt that the appellants were
members of an unlawful assembly sharing the common object to
commit the murder of Chhatrasal and in prosecution thereof
committed his murder. Mr. Daga, therefore, urged that in the
absence of proof of common object of an unlawful assembly to
commit the murder of Chhatrasal, the appellants cannot be
convicted under section 302 with the aid of 149 IPC. He
urged that assuming, that the appellants did participate in
the said assault, with the bamboo sticks and as per the post
mortem examination report, the injuries referable to the
assault by bamboo stick were simple in nature, the
conviction of the appellants under section 302 read with 149
IPC is illegal.
6. Mr. Jadhav, learned Advocate appearing for the State of
Maharashtra supported the impugned judgment.
7. We have carefully perused the judgment of the trial
court as well as the High Court. We have also gone through
the materials on record. It is not and cannot be disputed
that Chhatrasal had sustained as many as six injuries out of
which three injuries were punctured wounds and the remaining
were contusions over the vital parts of the body. Dr. Ashok
Panbudey (PW 6) who performed the autopsy on the dead body
of Chhatrasal opined that the cause of death was due to
shock and haemorrhage and due to injuries to the middle
cranial fossa (right side) and injuries to the liver and
right kidney. Dr. Ashok Panbudey (PW 6) further opined that
these injuries were ante mortem and they were sufficient to
cause the death of Chhatrasal. We see no hesitation in
accepting the finding of the courts below that Chhatrasal
died because of the injuries sustained by him during the
assault in question on 21-9-1991.
8. Coming to the complicity of the appellants, the
prosecution case principally rests on the evidence of Chindu
(PW 5) who runs a barber shop where Chhatrasal had gone for
shaving. He is an eye witness to the entire incident and at
the earliest opportunity, he had disclosed all details about
the assault to Raja Ram (PW 1) father of Chhatrasal and Om
Narayan (PW 4). We have gone through the evidence of Chindu
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and in our opinion, the Courts below have committed no error
in accepting the evidence of Chindu (PW 5) as trust worthy.
We have also gone through the evidence of Raja Ram (PW 1)
and Om Narayan (PW 4) who have again consistently supported
the prosecution story. On the basis of the evidence of these
witnesses, the courts below have held that the appellants
and other four accused had come together to the shop of
Chindu (PW 5) and assaulted Chhatrasal at the shop and
thereafter dragged him on the road and continued to assault
him. The evidence of the above prosecution witnesses also
finds support from the medical evidence. We, therefore, see
no infirmity in the findings recorded by the courts below as
regards the complicity of the appellants alongwith other
four accused. The appellants were the members of unlawful
assembly and shared common object to commit the murder of
Chhatrasal.
9. Mr. Daga strenuously urged that there is no evidence on
the record to hold that the appellants shared a common
object alongwith Vasanta accused No. 2 who caused injuries
by spear resulting in to the death of Chhatrasal. In the
absence of any positive evidence on record. counsel urged
that the appellants are entitled for benefit of doubt and
they be acquitted of an offence punishable under section 302
read with 149 of the Indian Penal code. We do not see any
substance in this contention because the evidence on record
is to the contrary. The contention of the learned advocate
for the appellants that there is no overt-act attributed to
the appellants by the prosecution witnesses in untenable.
The evidence on record clearly establishes the common object
of the unlawful assembly to commit murder of Chhatrasal. The
preparation with Which they came together and thereafter
assaulted Chhatrasal leaves no manner of doubt about their
common object. It is not possible to accept any of the
contentions raised by Mr. Daga on behalf of the appellants.
There is no substance in both the appeals. Appeals are
accordingly dismissed. If the appellants/accused are on
bail, they shall surrender to their bailbonds forthwith to
serve out their respective remaining terms of sentences.